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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Jember |
Citation: | [2024] ACTSC 311 |
Hearing Date: | 3 October 2024 |
Decision Date: | 11 October 2024 |
Before: | Christensen AJ |
Decision: | See [79] |
Catchwords:
| CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aid and abet burglary – trafficking controlled drug – driving disqualified – moral culpability reduced with reference to childhood disadvantage – whether drug and alcohol treatment order appropriate and suitable – suitability of drug trafficking offender for treatment order – potential risk to recovery of other participants – trust in participants to identify problematic behaviours – charge involving trafficable quantity however intended for personal use – purpose of a treatment order – offender suitable – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions ( Crown) Fasil Jember ( Offender) |
Representation: | Counsel E Wren ( Crown) S Baker-Goldsmith ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) |
File Numbers: | SCC 74, 75, 108, 109 of 2024 |
CHRISTENSEN AJ:
Introduction
1․ Fasil Jember is to be sentenced for offending behaviour on two separate occasions, involving three charges:
Series 1: 13 July 2023
(a) Aiding and abetting burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code) and carrying a maximum penalty of 14 years imprisonment, 1400 penalty units, or both.
Series 2: 28, 29 September 2023
(a) Trafficking in a controlled drug (methylamphetamine) contrary to s 603(7) of the Criminal Code, and carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both.
(b) Driving while disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty of one year imprisonment, 100 penalty units, or both. An automatic license disqualification of 24 months applies.
2․ Mr Jember contends that he is motivated to address his entrenched drug dependency and seeks that the inevitable terms of imprisonment that are to be imposed be suspended for the purposes of engagement in a drug and alcohol treatment order (treatment order): s 12A Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The offending
Series 1: 13 July 2023
3․ At some point prior to the morning of the offence, the owner of a white Mercedes Benz van gave permission to Mr Jember to use his van to move houses. In the early hours of 13 July 2023, Mr Jember drove the van to an address in Chapman.
4․ A resident of a unit at the address, a townhouse complex, got into her own car at about 6:40am while it was parked in her garage. She observed the white Mercedes Benz parked over the visitors carpark spaces at the complex. The van was idling and there were two people inside. She locked her townhouse, including the sliding door to her courtyard, before she left in her vehicle.
5․ Between that time and 9:30am, Mr Jember and an identified co-accused went towards the townhouse. The co-accused entered the residence. Mr Jember approached the front door of the residence and kept a look out. During this time, several items were taken from the house by the co-accused. These items were then placed in the van and they both left in the van.
6․ At 9:30am, the resident of the unit, and victim of this offending, received a call from her neighbour informing her that her residence had been broken into. The victim returned to her residence and observed her garage door and front door to be wide open. Several of her belongings were scattered on the garage floor and ground floor of her residence. The sliding door to the courtyard was ajar.
7․ The following items were stolen from the victim’s residence:
- Australian passport;
- picnic set with blue/black bag;
- range of toiletry items;
- purple glasses;
- Jeep brand car keys;
- garage remote;
- 3 x laptops and cords;
- 1 x Samsung mobile phone;
- 1 x woven box containing purses and handbags;
- 1 x debit card;
- 1 x Dyson stick vacuum cleaner and attachments;
- 1 x tool kit with mixed socket set; and
- perfume.
8․ On 14 July 2023 at about 10:39pm, police observed the van and conducted a traffic stop. The driver was identified as Mr Jember, and the passenger as the co-accused. Police conducted a search of the vehicle and located most of the items taken from the townhouse. Importantly, the items located included the passport, the keys and remote, the laptops and mobile phone, and the debit card. The toiletry items, vacuum cleaner, and tool kit were not located.
9․ Subsequent forensic examinations linked the co-accused to being inside of the residence, and linked Mr Jember to an item located outside the entry area of the townhouse.
10․ The agreed facts provide that the prosecution case is that Mr Jember aided and abetted the burglary by providing the vehicle for transport to and from the townhouse, and using the vehicle to transport the items taken. It is not clear from this inclusion in the facts the extent to which I am to take into account that Mr Jember is also described as having a role as a look out when the co-accused entered the residence.
11․ Nonetheless, Mr Jember’s role in aiding and abetting by facilitating the burglary with the transport of the co-accused, and items, is not without its own level of seriousness. It provided a crucial facilitation to the burglary and was, as the prosecution submitted, a not insignificant role in the offence. Absent Mr Jember’s involvement, it is unlikely the offence would have been committed in the circumstances in which it was.
12․ Those circumstances involved the victim’s home having been entered, a violation of her privacy and security. A number of important, and valuable, items were taken, but fortunately most of them were recovered. Regardless, the victim likely experienced distress, frustration, and inconvenience from the offending. It was offending that involved breaching the trust of a community member, who left her house in an expectation that it would not be broken into, as well as the breach of trust of the person who owned the vehicle and lent it to Mr Jember for a seemingly non-criminal purpose.
13․ I accept though the submissions on behalf of Mr Jember that he was not, on the information available, the instigator or leader of the offence. I do not accept the submission on his behalf that there was no significant pre-planning, nor that it was not protracted offending. This finding has regard to the victim’s observation of the vehicle’s presence before she left, and the areas of the house accessed and extent of items that were taken. Nonetheless, it remains a relatively unsophisticated form of the offending.
14․ The co-offender has not yet been sentenced, and accordingly parity considerations do not apply in this sentencing exercise.
15․ I note that, as will become apparent, Mr Jember was disqualified from driving at the time of this offending, but there is no charge in relation to this and so I have disregarded that aspect for this series.
Series 2 – 28, 29 September 2023
16․ On 28 September 2023 at about 11:05am, police were conducting patrols in Dickson and observed Mr Jember driving a blue Volkswagen sedan north along Majura Avenue. Mr Jember drove to, and parked at, the Hackett shops and got out of the vehicle.
17․ Police attended and arrested Mr Jember in relation to a breach of his bail conditions, which prohibited him from being in the driver’s seat of a vehicle.
18․ Police then conducted a search of Mr Jember and felt a lump underneath his buttocks. They requested he remove the item, which he did, throwing it on to the ground. The item was a small plastic bag containing a white crystalline substance, later analysed and found to contain methylamphetamine and weighing 12.96 grams. Police also located a total amount of $2,175.00 of currency on Mr Jember.
19․ Police subsequently conducted a search of the vehicle and located a small clip seal bag containing 0.46 grams of methylamphetamine. The also found a knotted plastic bag containing dimethyl sulfone, although the charge is particularised as relating only to methylamphetamine, and I infer I am to take the other substance into account as indicia of the trafficking conduct.
20․ This was, as the prosecution submitted, an example of trafficking by a ‘street-level’ dealer. There is a lack of sophistication in the offending, and the amount of illicit substance involved is relatively small, representing just over twice the trafficable quantity. Any offence of this type though warrants a strongly deterrent sentence. This is particularly so here where this is Mr Jember’s third offence for the supply of illicit substances, having been convicted of possession for sale/supply in 2016 and 2022.
21․ Drug trafficking has significant impacts on the community, both in terms of health and criminal activity. Those impacts are too well known to this Court. Traffickers and suppliers of drugs are, ultimately, those responsible for the destruction and devastation that substance use is capable of wreaking in our society. Denunciation of this conduct is necessary.
22․ As to the disqualified driving offending, at the time of driving the vehicle, Mr Jember was disqualified from holding or obtaining a driver's license. He had been convicted of driving while disqualified on 27 January 2023, and convicted of driving with a prescribed drug in his oral fluid on 2 November 2022, for which he was disqualified from holding a licence for 12 months.
23․ Since the offending the subject of the current sentence, on 6 June 2024 Mr Jember was convicted and sentenced in the Magistrates Court for two offences of driving while disqualified, offending that occurred in January and April 2023. He was sentenced to terms of imprisonment of 2 months and 3 months respectively. Prior to this, he has appeared in the Magistrates Court on six occasions for driving while disqualified or while he is license has been suspended, dating back to 2011.
24․ The repeat nature of this offending is reflected in the applicable maximum penalty. It remains though, while not to double punish Mr Jember for these previous offences, that a stern sentence is warranted to reflect deterrence. The manner of his driving while disqualified was not of concern, although it was not of a short duration and it reflects a blatant disregard for his privilege as a road user.
25․ Further, at the time of this driving, Mr Jember was also subject to a good behaviour order imposed for the offending sentenced in November 2022, and was on bail for the series one offending. The bail included a condition that he was not to drive. The good behaviour order was subsequently cancelled as a result of further breaches, and accordingly no action is required in respect to the breach.
26․ Nonetheless, it is a relevant consideration that Mr Jember was on conditional liberty, in the form of both a sentence order and a bail order, at the time of the series two offending. This is an aggravating factor on sentencing, and gives pause as to his prospects of compliance with a community based order (see further below at [58]-[59]).
Subjective circumstances
27․ Mr Jember is currently 32 years of age and was aged 31 years at the time of the offending.
28․ He was born in Ethiopia. On the information as provided to this Court, he was raised primarily by his mother until the age of six years. Thereafter, he was sent to live with an aunt and uncle who raised him until the age of 12 years, when he was sent with his older brother to Australia to reside with his father, whom he had not previously met. His time in Ethiopia was a period involving, on the information provided to the Court, exposure to war, domestic violence, and limited formal education opportunities.
29․ Upon moving to Australia, Mr Jember experienced difficulties in adjusting to a new culture, education requirements, and parenting style. He left the family home at the age of 14 years, after a discipline dispute with his father, and spent time in youth refuges, couch surfing and in informal care arrangements. He resided with his best friend’s mother for a period in late adolescence and he considers that family unit as his own family, one whom continue to provide him with support. His relationship with his biological father is now limited to visits during festive days. He has not seen his mother since he was six years of age. He has an older brother in Australia that he maintains a close relationship with.
30․ Mr Jember also has the support of a pro-social and long term partner. She is described as providing him support and stability, and it is described that Mr Jember fulfills a fatherly role to his partners two children. His partner is not tolerant of his substance use, with drugs not consumed at their home, and with Mr Jember using substances with companions in the community. Mr Jember himself has a young daughter that he hopes to have a relationship with in the future.
31․ Mr Jember’s partner has provided a letter to the Court in which she describes the significant assistance he provides to her and her family, as a positive influence and support.
32․ She describes that they are a young family with their whole lives still ahead of them. Mr Jember’s offending and substance use has not been around their home or children in the past, and his partner describes that “as long as Fasil is in my home and life I will support and accommodate him the best I can and I will also be very strict about his conditions and what he has to do to follow them”.
33․ Mr Jember has stable mental and physical health. He has maintained his health in the past through engagement with Muay Thai kickboxing, which he did for a period of years during which he describes not being “in trouble”. He is keen to get back into this activity. His commitment waned during the pandemic, and, along with relationship challenges, this led to him going “downhill” and using drugs that then “just never stopped”.
34․ He left the formal education system at the age of 15, following expulsion due to consuming alcohol and disruptive behavioural issues. He later completed a course at the Canberra Institute of Technology and obtained a white card and asbestos awareness ticket. He maintained periods of employment in the construction industry, with his longest term of continuous employment being approximately 13 months. However, he has not worked for approximately seven years.
35․ He aspires to complete a riggers and doggers course to work in the crane industry, having researched the requirements of the industry and spoken to a close associate who works in the sector.
Substance use
36․ Mr Jember advised that as an adolescent he smoked cannabis daily. In his later teenage years, he experimented with MDMA, until transitioning to use of cannabis, and then cocaine as his “drug of choice”. He progressed to daily use of methamphetamine by the age of 29 or 30 years. He denies a problematic relationship with alcohol.
37․ He has not previously engaged with alcohol or drug use programs, except for a brief attendance at the Canberra Recovery Hub immediately prior to his arrest for the current offences.
38․ For the purposes of a drug and alcohol order assessment (see below from [52]), Mr Jember advised ACT Corrective Services and ACT Health Services that his current remand period has enabled him to detox from his drug use. He said that his last use of substances was immediately prior to his arrest in September 2023. He was directed to undertake urinalysis testing on 5 September 2024 which, on confirmatory testing, returned a negative result for substances.
39․ It was submitted on Mr Jember’s behalf that his early substance use was in the nature of early use before he could make an informed choice. I infer this was a submission that such use reduces his moral culpability for his offending as an adult given the role of substance use in the offending, being an addiction stemming from early uninformed use: R v Henry [1999] NSWCCA 111; 46 NSWLR 346. I am not persuaded that Mr Jember’s substance use, even with it being from a relatively early age, ought be regarded in this way. While clearly there were factors in his childhood and adolescence that led to substance use at a time before there was strictly informed choice, his history of substance use is not to the extent that I would regard it as an example of the early exposure and use that ought reduce moral culpability.
40․ This is not to say that I have disregarded his experiences before adulthood. I accept, and no submission was made by the prosecution that I would not find, that the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles are enlivened. Mr Jember’s moral culpability is accordingly reduced in this regard. I also accept that it is informative and relevant to have regard to his life trajectory that included substance use from a young age and, regrettably, challenges with substance dependency as an adult. I have taken this aspect into account in the instinctive synthesis of the sentencing exercise.
Criminal history
41․ Mr Jember has a not insignificant criminal history, in both the ACT and New South Wales. [Redacted]. [Redacted] much of his criminal history involves minor driving offences, possession of drugs, and other summary offences reflective of drug dependency such as failure to appear at court, theft, and possession of weapons. There are two offences of summary level violence, the last of which was in 2012 and has not been repeated since then.
42․ I do not though accept the prosecution’s characterisation of Mr Jember’s criminal history as being one that is “extensive”. There are gaps in his offending behaviour, with a particularly significant period being from March 2017 through to December 2020. It is notable that this pre-dates the second period of lockdown in the pandemic, which is a relevant consideration as outlined below (at [54]).
43․ However, Mr Jember has been previously sentenced in the Supreme Court. In 2016, Murrell CJ sentenced Mr Jember for offences of possession of MDMA for the purpose of supply, and the theft of a television: R v Jember [2016] ACTSC 116. At that time, her Honour observed at [25] that:
[T]he offender’s commitment to remaining drug free is somewhat unclear and I am concerned about whether he is serious about staying away from drugs and drug-using associates but I will give him the benefit of the doubt on this occasion. With close supervision he may be able to remain drug free. There is no suggestion that he is addicted to drugs.
Her Honour was “optimistic” that with appropriate support, Mr Jember would achieve his then stated goals of maintaining a healthy and lawful lifestyle (at [27]).
44․ He was sentenced to 12 months imprisonment that was suspended forthwith. Unfortunately, he did not fulfill the optimistic expectations held by the Court and this order was breached, as well as subsequent offending occurring. I accept, as the prosecution submits, that Mr Jember’s ability to comply with community based orders must be met with a level of scepticism given his history.
Pleas of guilty
45․ A plea of guilty in relation to the series one charge was entered in the Supreme Court, prior to the matter being listed for trial. A plea of guilty in relation to the series two charges was entered after an initial plea of not guilty and the matter was listed for hearing in the Magistrates Court. The matter was then committed for sentence in the Supreme Court.
46․ While the pleas of guilty were entered a different stages in the criminal justice process, the utilitarian value is similar. That is, in relation to both series, a brief of evidence was required, limiting the utilitarian value. And while the series one offending did involve a plea of guilty in the Magistrates Court, which might typically afford a greater discount than a plea of guilty entered in the Supreme Court, these pleas of guilty were after a hearing date was set in that jurisdiction. I assess the appropriate discount to be in the order of 15 per cent for all charges.
Time in custody
47․ Mr Jember has been in custody since 15 September 2023. He served a sentence for other matters from that date until 19 February 2024. From 20 February 2024 until the date of sentence, he has been remanded in custody solely in relation to the charges the subject of sentence. I consider it appropriate to take into account the period of 234 days pursuant to s 63 of the Sentencing Act, and otherwise to have regard to the totality of the term that Mr Jember has been in custody: Mill v The Queen (1988) 166 CLR 59. That is, a total period now of over one year of imprisonment.
Consideration
48․ It is plain that only terms of imprisonment are warranted in respect to all charges in order to reflect deterrence, denunciation, and accountability. It is also plain that in the application of the totality principle consecutive terms are warranted. I consider this appropriate not only to reflect the distinct series, but within the series two offending, to reflect the distinct nature of the charges and to reflect the necessary level of deterrence that is appropriate.
49․ The issue becomes whether a treatment order is the manner in which the terms of imprisonment can and should be served.
50․ I am satisfied that Mr Jember has pleaded guilty to eligible offences, and that the terms of imprisonment to be imposed are within the legislated span enlivening the prospect of a treatment order. Mr Jember is not subject to a sentencing order. He is therefore eligible on a preliminary basis for such an order: s 12A(1) Sentencing Act.
Treatment order
51․ The issue becomes whether Mr Jember is otherwise eligible for the order, and whether it is both an appropriate and suitable one.
52․ Mr Jember has been assessed by both ACT Corrective Services and ACT Health Services as to his suitability for a treatment order. Both services have found him suitable. It is recommended that there be treatment and supervision for a period of 12 to 18 months.
53․ The prosecution submitted that the Court should have caution in being satisfied that a treatment order is appropriate and suitable for Mr Jember and as to his long-term prospects of rehabilitation. His history of non-compliance with community-based orders was particularly raised.
54․ On behalf of Mr Jember this concern was acknowledged, but it was submitted that his most recent period in custody has motivated a ‘turned corner’ in which he has grown in his insight and accountability. His positive intentions to now engage fully with his rehabilitation is otherwise submitted to be demonstrated by his intent to engage with rehabilitation prior to his arrest, his efforts with abstinence while in custody, and his having protective factors available. It was further submitted that the circumstance of the pandemic, which led to his most recent return to drug dependency, is unlikely to be repeated in the near future.
55․ There is a level of lack of acceptance of responsibility for the offending that is of concern. For example, Mr Jember describes that he was only the driver for the burglary and “I had nothing to do with it, there was no discussion about it, then I got pulled over and they found goods I knew nothing about. I’m taking it on the chin though”. This representation has to be considered in a context where Mr Jember accepts, per his plea of guilty and the agreed facts, that he was at the door of the victim’s house, and he plainly must have seen the items being transferred into the vehicle he had borrowed. This apparent lack of depth in honesty gives pause as to his suitability for a treatment order in which a commitment to honesty is an expectation and a necessary quality for success.
56․ I accept though that Mr Jember’s statement to the report writers that he disputed the charge of aggravated burglary and that he believed that the offence was withdrawn reflected that, to a lay person, the charge was. Mr Jember pleaded guilty to having aided and abetted this offence.
57․ Further, he has engaged well in the assessment process, to the extent that his engagement is described in the Health Services report as “wholehearted” engagement. He has disclosed matters as to his substance use in a seemingly open manner and is described as being forthcoming with his answers to questions. For example, he describes that his driving conduct has occurred in circumstances to “go and get drugs or going home from getting drugs”.
58․ He is described by Corrective Services as articulating “a clear motivation to change and achievable goals that he could achieve if afforced a community-based sentence”.
59․ Understandably, the assessors observe that reports as to Mr Jember’s actions in custody and a reluctance to modify behaviours and attitudes of defiance raise significant concerns. The assessors also highlight Mr Jember’s previous non-compliance with community based orders. Nonetheless, the Corrective Services report writer provides “this author anticipates that the day program staff and being held to account by the treatment team and Court could facilitate behavioural change”.
60․ The Court shares the Corrective Services’ officers measured optimism. The Drug and Alcohol Sentencing List (the List) has demonstrated success in supporting the rehabilitation of offenders that are motivated to change. Having said that, the Court is not naïve nor ignorant to the occasions when rehabilitation has not been achieved, but it remains that a sentencing option that involves being able to support what can be a non-linear journey from entrenched drug dependency is capable of meeting the objects of a treatment order: s 80O Sentencing Act.
Section 12A(2) eligibility
61․ I accept, as submitted on Mr Jember’s behalf, that his methamphetamine addiction “truly was the root cause of this offending”. He attributed his offending conduct to being motivated by the option to procure methamphetamine. He described that:
[I]f I wasn’t on drugs, I wouldn’t have been at the burglary, and I would have been doing other things as I’d have no reason to be there. It’s not the type of person I am, and I would never normally traumatise people in normal society. I have morals and this never would have happened if I hadn’t got caught up in it. I was smoking ice with my mate and disregarded what the others were up to because I was caught up in the drugs.
62․ Health Services find that Mr Jember had a likelihood of severe substance use disorder at the time of his offending. Historically, methamphetamine has been the most problematic substance. I am satisfied on the balance of probabilities that Mr Jember is dependent on a controlled drug and that this dependency substantially contributed to the commission of the offences.
63․ I am also satisfied to the requisite standard that Mr Jember will live in the ACT for the term of the sentence except as directed. He has available to him stable accommodation in the ACT, with a partner that will support and encourage his engagement with drug rehabilitation. The residence that Mr Jember proposes to reside at with his partner and her two children has been assessed as suitable.
64․ There is no information as to concerns by a victim about their safety or welfare, and Mr Jember has given the appropriate informed consent for the order.
Sections 80S, 80T Sentencing Act
65․ Health Services support a treatment option of a day program, with this described as providing the appropriate flexibility, and the option to ‘step up’ to residential rehabilitation if the potential non-linear journey of his rehabilitation requires this. Corrective Services confirmed that Mr Jember has been accepted to attend a day program from 14 October 2024. Mr Jember considers the proximity and ethos of this service is appropriate to meet his needs. He has expressed an expectation that a community based rehabilitation program is the treatment option most likely to support his successful completion of a treatment order. He says that “I will do what I’m told to do but my partner will be stricter on me than any rehab could be”.
66․ He is described in the assessment process as having taken the opportunity to ask numerous questions about how the order functions and how treatment in each phase would work. He expressed his desire to “excel” if granted a treatment order.
Appropriateness of the order: s 80S(b) Sentencing Act
67․ There is one particular aspect to the legislated considerations that applies in the making of the treatment order that I consider it necessary to observe. This is a hesitation as to the appropriateness of the order when the potential participant is someone who is being sentenced for trafficking in a controlled drug, and has a history of supplying drugs.
68․ There are no legislative prescriptions as to what is meant by an offender being ‘appropriate’ to serve a sentence suspended in accordance with a treatment order. It appears to be a matter for the Court to assess the appropriateness of such a sentence order, cognisant of the objects of the imposition of such an order: s 80O Sentencing Act.
69․ A treatment order is a unique form of sentencing order in so far as it involves the court having a role in the administration of the sentence order. This includes regular reviews in which all participants are returned for court appearances, and involves participants regularly meeting and engaging with each other when meeting the urinalysis testing requirements of the order which are done at the Court house. In short, it regularly brings people in vulnerable stages of recovery from drug dependency together.
70․ It cannot be irrelevant for the Court, when considering the imposition of a treatment order, to consider the appropriateness of such an order in the context of the potential impact on other participants engaged with a treatment order. If there was concern that the inclusion of a potential participant on the List could be detrimental to the participants, and the program as a whole, it may be that an order is not an appropriate one for a particular offender.
71․ After careful consideration, I am satisfied that a treatment order remains an appropriate one for Mr Jember, even taking into account the potential implications to other participants and the program. Mr Jember reports that, despite the quantities of drugs the subject of his conviction being of a trafficable quantity, they were for personal use and he had an approach of ‘buying in bulk’ for his own needs. It is also not without precedent that programs of this type can include participants with such a criminal offending profile: Jurd v The King [2024] VSCA 224 .
72․ I should also add that I have confidence in the commitment of the participants on the List (who have a level of protection with disclosure as to substance use pursuant to s 80ZM of the Sentencing Act), and the rigours of the testing regime, that any concerning behaviour by Mr Jember would be rapidly identified and able to be dealt with. Additionally, I have such a level of confidence in Mr Jember’s commitment to finally address his drug dependency that this hesitation I have had is likely entirely hypothetical.
73․ His period of abstinence while in custody provides a solid foundation to begin his journey of long-term rehabilitation. Further, his periods of abstinence, and pro-social involvement in the community, show him to be someone capable of being a productive community member.
Consideration
74․ Mr Jember expresses solid goals that are worth repeating in the interests of both reminding him of these, and to enable this Court to keep him accountable to them. He says his goals are to:
Get back to the gym. If I can be motivated to get to the gym the rest will follow because I’ll be around positive people who despise cigarettes, let alone meth.
I know drug court will keep me on a leash and I won’t let negative influences drag me down.
I want to be a good partner and a good father figure and make good changes day by day
I need to change for myself and my family. My girl can’t do it anymore. I’ve been in jail for one year of a two-year relationship and I’m destined to be something better than just sitting in jail. With all the hurdles and struggles I’ve overcome, I must have a better calling than jail.
75․ Mr Jember demonstrates the requisite motivation and intention to rehabilitate, along with the availability of community supports in the form of a rehabilitation program and family support. There is a basis to be confident as to there being a solid foundation for rehabilitation to be achieved. Such an outcome, one that can be achieved with the onerous oversight, supervision, and high expectations of the treatment team and the Court, is one that will ultimately best meet community protection.
76․ As submitted on behalf of Mr Jember, he is “exactly the type of offender that the DASL was designed to assist”. That is, a treatment order is not one imposed for a person who does not exhibit challenges with drug dependency and for whom there can be complete confidence in the prospects of rehabilitation from that dependency, and offending behaviour.
77․ A treatment order is not a sentencing option for offenders who come before the Court with a perfect history without criminal offending, compliance with community based orders, or success with previous drug and alcohol rehabilitative efforts. The entire point of a treatment order is to support offenders who are motivated to address such challenges. A treatment order provides a mechanism by which the non-linear journey of rehabilitation can be supported, with sanctions and consequence as necessary, and encouragement and recognition of progress when achieved. Through such an approach, the Court, in conjunction with the other members of the treatment team, is able to achieve the legislated objectives of such an order: s 80O Sentencing Act.
78․ I have the requisite degree of confidence that Mr Jember can achieve these objectives. There is reason to have solid optimism as to his prospects on a treatment order. Taking into account all relevant matters, including the sentencing considerations that apply and the objects of such an order, Mr Jember is eligible and suitable for such an order, and I consider it an appropriate sentencing option.
Orders
79․ For those reasons, the following orders are made:
(1) Fasil Jember be convicted of aid and abet burglary (SCCAN 2024/123) and sentenced to 1 year and 8 months imprisonment, reduced from 2 years imprisonment on account of his plea of guilty, commencing on 20 February 2024 and ending on 19 October 2025.
(2) Fasil Jember be convicted of trafficking in a controlled drug (methylamphetamine) (CAN 9562/2023) and sentenced to 1 year and 4 months imprisonment, reduced from 1 year and 6 months imprisonment on account of his plea of guilty, commencing on 20 October 2025 and ending on 19 February 2027.
(3) Fasil Jember be convicted of driving while disqualified (CAN9565/2023) and sentenced to 4 months imprisonment, reduced from 5 months imprisonment on account of his plea of guilty, commencing on 20 February 2027 and ending on 19 June 2027.
(4) A total term of imprisonment of 3 years and 4 months be imposed, to commence on 20 February 2024 and end on 19 June 2027.
Drug and Alcohol Treatment Order
(5) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Fasil Jember in respect of the eligible offences set out in Orders 1 to 3, of which Fasil Jember has been convicted and for which he has been sentenced for a total term of 3 years and 4 months imprisonment.
(6) The Drug and Alcohol Treatment Order be for 2 years, 8 months and 9 days to commence on 11 October 2024 and end on 19 June 2027.
(7) The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offences here be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 11 October 2024 until 19 June 2027.
(8) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 1 year and 6 months, to commence on 11 October 2024 and end on 10 April 2026.
(9) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Fasil Jember be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 11 April 2026, until the end of the total sentence, 19 June 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(10) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b) Fasil Jember undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates, and his attendance at court from time to time;
(c) Fasil Jember not return a positive test sample under alcohol and drug testing;
(d) Fasil Jember not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and
(e) Fasil Jember comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(f) Fasil Jember is to reside at 3/1 Sidaway Street, Chapman, ACT, when not in residential rehabilitation.
(g) Fasil Jember is not to leave his place of residence between 6pm each day and 8am the next day other than for a medical emergency, and he present to the front door of his residence if required by an officer of ACT Policing.
(h) Fasil Jember is not to drive a motor vehicle, or be in the driver’s seat of a motor vehicle.
(11) Fasil Jember be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.
(12) Fasil Jember be directed to appear in person for DASL review in Court at 11:30am on Friday, 18 October 2024.
(13) The transfer charge of unlawful possession of stolen property (CAN 10025/2023) is dismissed.
80․ It is noted that pursuant to s 32(5)(b) of the Road Transport (Driver Licensing) Act 1999 (ACT) the offender is automatically disqualified from holding or obtaining a drivers licence for 24 months.
I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: |